Johnson v. Holt

Johnson
alleges that while he was incarcerated at Central State
Prison the Defendants lost a UPS package addressed to him
that contained a transcript he needed for a post-hearing
brief in his state habeas proceeding, did not help him find
it, and did not let the state habeas court know what was
going on. Doc. 1 at 17, 21. The transcript was from the
second of two evidentiary hearings in Johnson's state
habeas proceeding, and contained the testimony of a doctor
regarding Johnson's habeas claim that his guilty plea was
impaired by medication. Doc. 1 at 11-13; see also
Doc. 73 at 3.

The
Court has reviewed the Recommendation and has made a de novo
determination of the portions to which Johnson objects. For
the reasons that follow, the Court determines that
Johnson's objections are without merit. The Court
accordingly ADOPTS the Magistrate Judge's order as
clarified by this Order and GRANTS the Defendants' motion
for summary judgment (Doc. 63) and DENIES Johnson's
motion (Doc. 55).

I.
OBJECTIONS

A.
Objections 1, 5, and 7

In
Objections 1, 5, and 7, Johnson, recognizing that mere
negligence is not enough to state an access-to-court claim,
argues that he has demonstrated the Defendants'
intentional failure to follow standard operating procedures
(SOPs), bringing the case within the holding of Simkins
v. Bruce, 406 F.3d 1239 (10th Cir. 2005). Doc. 76 at
1-3, 7-9, 10-11.

In
Simkins, the defendant's affidavit reflected a
course of deliberate conduct to hold, and not forward, mail
directed to the plaintiff while he was transferred to an
out-of-state prison for court proceedings. 406 F.3d at
1241-43. The defendant argued that this is what she was
trained to do, even though the SOPs required that the mail be
forwarded. Id. at 1242-43. The Tenth Circuit held
that even though the defendant was doing what she was trained
to do and did not understand her obligations under the SOPs,
her decision to hold the defendant's mail in violation of
the SOPs was “intentional conduct violating
plaintiff's right of access to the courts.”
Id. at 1243.

Johnson's
claim against Nelson relies on evidence that a
“Nelson” signed for the transcript at the prison
gate. Doc. 76 at 7-8. Johnson argues that Nelson's
“signing for and handeling [sic] privileged mail when
not assigned to a mailroom post” constituted
“INTENTIONAL NEGLECT” of the prison's SOPs.
Id. at 7. Johnson supports his argument that the
SOPs were violated by pointing to the Defendants'
interrogatory responses. See, e.g., id. at
12. The responses seem to address SOPs for mail that was
picked up from a United States Postal Service office or was
otherwise already in the prison's mail system, not
packages dropped off at the prison gate by a third-party
carrier.[1] Construed in Johnson's favor, however,
the Defendants' responses support his conclusion that
Nelson violated the SOPs by signing for the UPS
package.[2]

However,
assuming that Nelson violated the SOPs by signing for
Johnson's UPS package, Johnson's reliance on
Simkins is still misplaced. Unlike Simkins,
where the defendant's testimony reflected a conscious
choice to not forward the plaintiff's legal mail, there
is no evidence here that Nelson chose to withhold or divert
Johnson's mail. There is nothing in the record supporting
a reasonable inference that the package did not reach the
mailroom just as it should have. Cf. Doc. 63-2 at 15
(Johnson testifying that he had “no idea” what
happened to the package after it was signed for).
Accordingly, unlike the defendant in Simkins,
Nelson's decision to sign for the mail in violation of
the SOPs is not connected to any actual or intended impedance
of Johnson's package.

Johnson's
assertions that Phelps also failed to follow the SOPs (Doc.
76 at 2-3, 5-8, 11) fail for similar reasons. Johnson's
piggyback claim against Phelps-that Phelps violated the SOPs
by allowing Nelson to sign for Johnson's mail
(id. at 2-3, 7-8, 11)-fails because, even if Phelps
allowed Nelson to sign for the mail in violation of the SOPs,
there is no evidence connecting this to any interference with
the delivery of Johnson's mail, as explained above.

Johnson
attempts to demonstrate that Phelps did not follow other SOPs
in regard to the UPS package by arguing that if the SOPs had
been followed, he would have gotten the transcript or it
would have been returned to the sender as undeliverable.
See, e.g., id. at 2, 5, 7-8. Because
Johnson did not receive the package and it was not returned
to the sender, it is reasonable to conclude that someone in
the prison did not comply with the SOPs. Indeed, the evidence
may even support an inference the failure to comply with the
SOPs was an intentional obstruction of the package's
delivery. See Docs. 63-2 at 20; 70-1 at 8; 76 at 8.
However, the Court is unaware of any law relieving Johnson of
the burden to show that this “someone” was
Phelps. Johnson has failed to demonstrate that Phelps ever
made any decision regarding the package, let alone that he
was solely responsible for the package. Accordingly, Johnson
cannot demonstrate that Phelps did not follow the SOPs
regarding the package by simply showing that, somewhere along
the way, the SOPs were not followed. The Court understands
the frustration Johnson must feel that his claim fails simply
because he, even with the benefit of discovery, is unable to
determine who this “someone” is.[3] But that is the
law.

B.
Objection 6

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Johnson
argues in Objection 6 that Warden Holt told Fagan to
&ldquo;[i]mmediately contact and draft a letter to&rdquo; the
state habeas court about the lost transcripts on two
occasions, but Fagan still neglected to &ldquo;sign a letter
to be sent off to&rdquo; the habeas court. Doc. 76 at 9-10.
However, according to Johnson&#39;s deposition, Fagan, on
Holt&#39;s second instruction, brought Johnson to his office
and instructed a subordinate to take down Johnson&#39;s
information, draft a letter, and get into contact with the
habeas court. Doc. 63-2 at 17. Johnson assumes that no letter
was ever sent. Id. He makes this admitted
&ldquo;assumption&rdquo; because he sent a letter to the
habeas court to find out if they had received a letter from
Fagan, but never heard back from the habeas court.
Id. This is not enough to ...

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